Oregon courts focus on the “best interests and welfare of the child” in determining which parent will be awarded legal custody. It is commonly asked what the phrase “in the best interests” means. In some cases, a custody determination can be obvious. Where one parent is unable to care for the child and provide a safe and loving home, the best interests of the child is easy for the court to determine. In other cases, the other parent may be seriously impaired as a result of drugs or alcohol. Again, this is an easy determination for the court. But in cases where both parents are loving, well adjusted, and able to provide a safe, stable home, the best interests of the child can be extremely difficult to determine.
WHAT IS THE BEST INTERESTS OF THE CHILD?
The Oregon courts use a statutory framework to answer this question. Consideration is given to the age and gender of the child, the educational needs and resources available to each parent, the stability of each parent’s home, and the income and financial resources of each parent. The court may also consider the child’s preferences in regard to where their primary residence will be located. These are some of the most common factors considered by the courts, but the list is not exhaustive. The Court will use any factor it deems relevant to decide what best serves the child’s interests.
In most cases, the overriding consideration will generally be which parent is the primary care provider for the children. This test focuses on who provides the day-to-day needs of the child. Oregon Courts also look to which is the most nurturing parent in close custody cases.
It is common for people to mistakenly believe that the children get to choose which parent they want to live with at a certain age (generally age 12 or above). This is simply not true. Even older teenage children are rarely allowed direct input by the court. There are methods for having the voices of the children heard, such as the appointment of counsel for children or through a custody and parenting time evaluation to investigate the children’s desires and interests in the custody award. While children generally do not get to choose, it is clear that the court will heavily weigh an older, mature child’s decision as to which parent they would prefer to live with.
ORS 107.137 sets forth the guidelines for how Oregon courts should determine the best interests of the child. ORS 107.137 provides in pertinent part:
To determine the custody of a minor child, the court shall give primary consideration to the best interests and welfare of the child. In determining the best interests and welfare of the child, the court shall consider the following relevant factors:
(1) The emotional ties between the child and the other family members;
(2) The interests of the parties and attitude toward the child;
(3) The desirability of continuing an existing relationship;
(4) The abuse of one parent by the other;
(5) The preference of the primary caregiver of the child if the caregiver is deemed fit by the court;
(6) The willingness and ability of each parent to facilitate and encourage a close continuing relationship between the other parent and the child.
The court may not consider such willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in a pattern of behavior of abuse against the parent or child or in a continuing relationship with the other parent will endanger the health or safety of each parent or the child.
Child custody cases are often emotionally challenging and contentious. It is important for parents involved in the custody dispute to keep a level head and to focus on the best interests and welfare of their children. Proper focus on providing a loving home to a child will usually result in a successful outcome for the parties. Maintaining composure helps parents make sound decisions and allows for a custody agreement that is in the best interests of the child and meets the needs of the parties involved. Having a skilled child custody attorney will clearly make the process easier. Working with an experienced child custody attorney provides you the legal guidance you need to navigate your case with confidence and to protect the interests of your family.
CONTACT PAUL F. SHERMAN FOR EXPERT ADVISE ON YOUR CHILD CUSTODY CASE OR PARENTING PLAN
We know you have more questions and we have the answers. If you would like to learn more about child custody, divorce, or any family law matter, call the Law Offices of Paul F. Sherman at (503) 223-8441 for legal advice, or Contact Us for a free consultation.